Appeal from District Court, Johnson County, W. C. Wear, Special Judge.
TEMPLETON, J.
On June 27, 1898, A. M. Morgan and A. C. Barber entered into a written contract of partnership, which reads thus: "This agreement made and entered into this the 27th day of June, 1898, between A. M. Morgan of the first part and A. C. Barber of the second part:
"Witnesseth: That the said A. M. Morgan and A. C. Barber have agreed to enter into the real estate, brokerage and insurance business in the City of Cleburne, Texas, under the firm name of A. M. Morgan & Co. The said A. M. Morgan agrees to give the firm full control of all his interest in Morgan's Addition in the City of Cleburne for the sale of lots and houses and to pay the regular commission of five per cent. for all sales of property coming through office and trade. He also agrees to give the business at least one half of his time and personal attention. He further agrees that in consideration of the services of A. C. Barber, the said A. C. Barber shall receive $62.50 per month and in case the firm does not make that much, the said A. M. Morgan will pay the salary.
"All profits accruing from said business shall be divided and shared equally between the said A. M. Morgan and A. C. Barber. Statements and settlements shall be made every twelve months as may be desired by either party. This agreement shall be in effect on July 1st, 1898, and remain in effect for one year, or until July 1st, 1899, at which time a settlement of the affairs resulting from this partnership shall be settled and disposition made as the partners may agree upon.
"The said A. C. Barber agrees to furnish the said A. M. Morgan about Three Hundred Dollars during the next twelve months on or about the beginning of this contract which amount shall be secured to the satisfaction of the said A. C. Barber and shall fall due and be payable on or about July 1st, 1899, an expense account shall be kept which shall be borne by each party equally, after the above has been complied with. A. M. Morgan.
"A. C. Barber."
The business was conducted from July 1, 1898, to July 1, 1899, under the provisions of said contract. It was then agreed between the parties that the business should be continued six months longer upon the same terms, except that Morgan should not be liable as guarantor of the profits. In January, 1900, the partnership was dissolved, but no settlement of the partnership accounts was effected. Each party claimed that the other was indebted to him on a settlement, and Barber brought this suit to recover the amount claimed by him. Morgan reconvened, and on a trial before the court without a jury obtained judgment for $436.49.
Conclusions of fact and law were filed by the trial judge, from which we quote as follows: "I find that during the first year of said copartnership the plaintiff, A. C. Barber, paid out and was credited on the books with the sum of $1,609.74, this includes the $750 of his salary. I further find from the books
that A. C. Barber has withdrawn and is debited with the aggregate amount of $1,585.81. This aggregate amount of debits taken from the aggregate amount of credits leaves still due A. C. Barber on his salary the sum of $23.93. I further find that defendant A. M. Morgan during the first year paid into and is credited on the books with the aggregate amount of $1,070.40, and that he is debited with the aggregate amount of $664.14, leaving a balance due A. M. Morgan by the copartnership of the sum of $406.26. Subtracting $23.93 from the $406.23, leaves $383.34, which I find A. C. Barber is due A. M. Morgan. Plaintiff and defendant each, in his pleadings, sets up various items of indebtedness against the other all as shown by their pleadings and exhibits. When these items are contested and are not admitted, the burden of proof is on the party asserting the claim, and he must show its correctness, etc. All of the items set up by plaintiff but two are denied and contested by defendant. The items admitted are Morgan & Dart's $36 and Morgan & Allen's $111.25. These sums I allow. On the other hand, all the items set up by defendant are denied and contested by plaintiff, except two items, viz., Shumard & Company, $56.56, and Continental Insurance Company, $45.90, which sums I allow defendant. As to all the other items set up by plaintiff and defendant, respectively, against each, except as hereinbefore allowed, I find against each one of said items, and do not allow the same, because, in addition to the reason above stated, if they should, as a matter of law, be considered, the evidence fails to establish their justness. Allowing Morgan the items heretofore set out and Barber the items aforesaid, I find a balance in favor of Morgan of $436.48. The amount that I find A. C. Barber is due A. M. Morgan on the first year is $382.34, and the amount due on the second year of the copartnership is $54.09, aggregating $436.48, which I find that A. C. Barber on the copartnership account is due to A. M. Morgan. I find that Morgan is due A. C. Barber $9.50 for notary work, but this, being a private account between A. C. Barber and A. M. Morgan, I don't take into account in settling up the copartnership affairs, because from the evidence I do not think it was any part of the partnership business. Neither was it shown that it was agreed to be so considered by the parties. I further find that the...
